# In the United States Court of Federal Claims

OFFICE OF SPECIAL MASTERS No. 16-766V Filed: November 3, 2017 UNPUBLISHED

MAX BAUM,

Petitioner,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. Special Processing Unit (SPU); Damages Decision Based on Proffer;Influenza (Flu) Vaccine; GuillainBarre Syndrome (GBS)

Jeffrey S. Pop, Jeffrey S. Pop & Asso ciates, Beverly Hills, CA, for petitioner. Ilene Claire Albala, U.S. Department of Ju stice, Washington, DC, for respondent.

DECISION AWARDING DAMAGES 1

Dorsey , Chief Special Master:

On June 29, 2016, petitioner filed a petit ion for compensation under the National Vaccine Injury Compensation Program, 42 U.S.C. §300aa-10, et seq.
, 2 (the “Vaccine Act”). Petitioner alleges that he suffered Gu illain-Barre Syndrome (“G BS”) as a result of his November 12, 2015 influenza (“flu”) vacci nation. Petition at 1. The case was assigned to the Special Processing Unit of the Office of Special Masters.

On October 27, 2017, a ru ling on entitlement was i ssued, finding petitioner entitled to compensation for GBS. On Nove mber 2, 2017, respondent filed a proffer on award of compensation (“Proffer”) i ndicating petitioner should be awarded compensation on the terms set fort h therein. Proffer at 1-5. In the Pr offer, respondent represented that petitioner agrees with the proffered award.

1 Because this unpublished decision contains a reasoned explanation for the action in this case, the undersigned intends to post it on the United States Court of Federal Claims' website, in accordance with the E-Government Act of 2002. 44 U.S.C. § 3501 note (2012) (Federal Management and Promotion of Electronic Government Services). In accordance with Vaccine Rule 18(b), petitioner has 14 days to identify and move to redact medical or other inform ation, the disclosure of which would constitute an unwarranted invasion of privacy. If, upon review, t he undersigned agrees that the identified material fits within this definition, the undersigned will redact such material from public access.

2 National Childhood Vaccine Injury Act of 1986, Pub. L. No. 99-660, 100 Stat. 3755. Hereinafter, for ease of citation, all “§” references to the Vaccine Act will be to the pertinent subparagraph of 42 U.S.C. § 300aa (2012).2 Based on the record as a whole, the under signed finds that petitioner is entitled to an award as stated in the Proffer.

Pursuant to the terms stated in the attached Proffer, the undersigned awards the following compensation:
A. A lump sum payment of $399,599.88, representing compensation for life care expenses expected to be incurred during the first year after judgment ($135,549. 84), pain and suffering ($237,359.96), and past unreimbursable expenses ($26, 690.08), in the form of a check payable to petitioner, Max Baum.
B. A lump sum payment of $46,640.43, representing compensation for satisfaction of the Stat e of Illinois Medicaid lien, payable jointly to petitioner and

Illinois Department of Heal thcare and Family Services Bureau of Collections Technical Recovery Section

401 S. Clinton, 5th Floor Chicago, IL 60607-3800 Case No.: 91-200-0000FH1483 Attn: Anthony Graham

C. An amount sufficient to purchase an annuity contract, 3 subject to the conditions described below, t hat will provide payments for the life care items contained in the life care plan, as illustrated by the chart at Tab A, attached hereto, paid to the life insurance company 4 from which the annuity will be purchased. 5 Compensation for Year Two (beginning on the first anniversary of the date of j udgment) and all subseq uent years shall be provided through respondent’s purchase of an annuity, which annuity shall make payments directly to pet itioner, Max Baum, only so long as

3 “In respondent’s discretion, respondent may purch ase one or more annuity contracts from one or more life insurance companies.” Proffer at Note 3.

4 “The Life Insurance Company must have a minimum of $250,000,000 capital and surplus, exclusive of any mandatory security valuation reserve. The Life Insurance Company must have one of the following ratings from two of the following rating organizations:

a. A.M. Best Company: A++, A+, A+g, A+p, A+r, or A+s; b. Moody's Investor Service Claims Paying Rating: Aa3, Aa2, Aa1, or Aaa; c. Standard and Poor's Corporation Insurer Claims-Paying Ability Rating: AA-, AA, AA+, or AAA; d. Fitch Credit Rating Company, Insurance Compan y Claims Paying Ability Rating: AA-, AA, AA+, or AAA.” Proffer at Note 4.

5 “Petitioner authorizes the disclosure of certain docu ments filed by the petitioner in this case consistent with the Privacy Act and the routine uses described in the National Vaccine Injury Compensation Program System of Records, No. 09-15-0056.” Proffer at Note 5.3 Max Baum is alive at the time a particular payment is due. At the Secretary’s sole discretion, the per iodic payments may be provided to petitioner in monthly, quar terly, annual or other installments. The “annual amounts” set forth in the chart at T ab A describe only the total yearly sum to be paid to petitioner and do not requi re that the payment be made in one annual installment.

1. Growth Rate Respondent proffers that a three percent (3%) growth rate should be applied to all non-medical life care items, and a five percent (5%) growth rate should be applied to all medical life care items. Thus, the benefits illustrated in the c hart at Tab A that are to be paid through annuity payments should grow as follows : three percent (3%) compounded annually from the date of judgment for non-medical items, and five percent (5%) compounded annually from the date of judgment for medical items. Petitioner agrees.

2. Life-contingent annuity Petitioner will continue to rece ive the annuity payments from the Life Insurance Company only so long as he, Max Baum, is alive at the time that a particular payment is due. Written notice shall be provided to the Secretary of Health and Human Services and the Life Insurance Company within twenty (20) days of Max Baum’s death.

3. Guardianship Petitioner is a competent adult. Evidence of guardianship is not required in this case.

Proffer at 3-5. This amount represents compensation for all damages that would be available under § 300aa-15(a).

The clerk of the court is directed to enter judgment in accordance with this decision. 6

IT IS SO ORDERED.

s/Nora Beth Dorsey Nora Beth Dorsey Chief Special Master

6 Pursuant to Vaccine Rule 11(a), entry of judgment c an be expedited by the parties’ joint filing of notice renouncing the right to seek review.- 1

- IN THE UNITED STATES COURT OF FEDERAL CLAIMS OFFICE OF SPECIAL MASTERS

MAX BAUM

,

Petitioner

,

v.

SECRETARY OF HEALTH AND HUMAN SERVICES,

Respondent. No. 16-766V Chief Special Master Dorsey ECF

PROFFER ON AWARD OF COMPENSATION

On June 29, 2016, Max Baum (“petitioner”) filed a petition for compensation (“Petition”)

under the National Childhood Vaccine Injury Act of 1986, 42 U.S.C. §§ 300aa-1 to -34

(“Vaccine Act” or “Act”), as amended. Petitioner alleges that he suffered Guillain

- Barré

syndrome (“GBS”) as a result of an influenza (“flu”) vaccine administered on November 12,

2015. Petition at 1. On October 27, 2017, Chief Special Master Dorsey issued an order finding

that petitioner is entitled to compensation. Ruling on Entitlement, D.I. 45. The following is

respondent’s proffer on damages.

I. Items of Compensation

A. Life Care Items

Respondent engaged life care planner Linda Curtis , RN, MS, CCM, CNLP , and pe titioner

engaged Brook Feerick

, RN

, CCM

, CNLCP , to provide an estimation of Max Baum ’s future

vaccine -injury related needs. For the purposes of this proffer, the term “vaccine related” is as

described in the respondent’s Rule 4(c) Report , which was filed on October 26, 2017. All items

of compensation identified in the life care plan are supported by the evidence, and are illustrated- 2

- by the chart entitled Appendix A: Items of Compensation for Max Baum, attached hereto as Tab

A. 1 Respondent proffers that M ax Baum should be awarded all items of compensation set forth

in the life care plan and illustrated by the chart attached at Tab A. Petitioner agrees.

B. Lost Earnings

The parties agree that based upon the evidence of record, Max Baum has not suffered a

past loss of earnings and will not suffer a loss of earnings in the future. Therefore, respondent

proffers that Max Baum should not be awarded lost earnings as provided under the Vaccine Act,

42 U.S.C. § 300aa- 15(a)(3)(A). Petitioner agrees.

C. Pai n and Suffering

Respondent proffers that Max Baum should be awarded $237,359.96 in actual and

projected pain and suffering. This amount reflects that any award for projected pain and

suffering has been reduced to net present value. See 42 U.S.C. § 300aa- 15(a)(4). Petitioner

agrees.

D. Past Unreimbursable Expenses

Evidence supplied by petitioner documents Max Baum ’s expenditure of past

unreimbursable expenses related to h is vaccine -related injury. Respondent proffers that

petitioner should be awarded past unreimbursable expenses in the amount of $26,690.08.

E. Medicaid Lien

Respondent proffers that Max Baum should be awarded funds to satisfy a State of Illinois

lien in the amount of $46,640.43, which represents full satisfaction of any right of subrogation,

assignment, claim, lien, or cause of action that the State of Illinois may have against any

individual as a result of any Medicaid payments the State of Illinois has made to or on behalf of

1 The chart at Tab A illustrates the annual benefits provided by the life care plan. The annual benefit years run from the date of judgment up to the first anniversary of the date of judgment, and every year thereafter up to the anniversary of the date of judgment.- 3

- Max Baum from the date of his eligibility for benefits through the date of judgment in this case

as a result of his vaccine -related injury suffered on or about November 12, 2015, under Title XIX

of the Social Security Act.

II. Form of the Award

The parties re commend that the compensation provided to Max Baum should be made

through a combination of lump sum payments and future annuity payments as described below,

and request that the Chief Special Master’s award the following: 2

A. A lump sum payment of $399,599.88, representing compensation for life care

expenses expected to be incurred during the first year after judgment ($ 135,549.84), pain and

suffering ($ 237,359.96 ), and past unreimbursable expenses ($26,690.08 ), in the form of a check

payable to petitione r, Max Baum

.

B . A lump sum payment of $46,640.43, representing compensation for satisfaction of the

State of Illinois Medicaid lien, payable jointly to petitioner and

Illinois Department of Health c are and Family Services Bureau of Collections Technical Recovery Section

401 S. Clinton, 5 th Floor Chicago, IL 60607-3800 Case No

. : 91-200-0000FH1483 Attn: Anthony Graham

C. An amount sufficient to purchase an annuity contract, 3 subject to the conditions

described below, that will prov ide payments for the life care items contained in the life care plan,

2 Should petitioner die prior to entry of judgment, the partie s reserve the right to move the Court for appropriate relief. In particular, respondent would oppose any award for future medical expenses, future lost earnings, and future pain and suffering.

3 In respondent’s discretion, respondent may purchase one or more annuity contracts from one or more life insurance companies.- 4

- as illustrated by the chart at Tab A , attached hereto, paid to the life insurance company 4 from

which the annuity will be purchased. 5 Compensation for Year Two (beginning on the first

anniversary of the date of judgment) and all subsequent years shall be provided through

respondent’s purchase of an annuity, which annuity shall make payments directly to petitioner,

Max Baum , only so long as Max Baum is alive at the time a particular pa yme nt is due. At the

Secretary’ s sole discretion, the periodic payments may be provided to petitioner in monthly,

quarterly, annual or other installments. The “annual amounts” set forth in the chart at Tab A

describe only the total yearly sum to be paid to petitioner and do not require that the payment be

made in one annual installment.

1. Growth Rate

Respondent proffers that a three percent ( 3%) growth rate should be applied to all nonmedical life care items, and a five percent (5%) growth rate should be applied to all medical life

care items. Thus, the benefits illustrated in the chart at Tab A that are to be paid through annuity

payments should grow as follows: three percent ( 3%) compounded annually from the date of

judgment for non- medical items, and five percent (5%) compounded annually from the date of

judgment for medical items. Petitioner agrees.

4 The Life Insurance Company must have a minimum of $250,000,000 capital and surplus, exclusive of any mandatory security valuation reserve. The Life Insurance Company must have one of the following ratings from two of the following rating organizations:

a. A.M. Best Company: A++, A+, A+g, A+p, A+r, or A+s;

b. Moody's Investor Service Claims Paying Rating: Aa3, Aa2, Aa1, or Aaa;

c. Standard and Poor's Corporation Insurer Claims- Payi ng Ability Rating: AA -, AA, AA+, or AAA;

d. Fitch Credit Rating Company, Insurance Company Claims Paying Ability Rating: AA

- , AA, AA+, or AAA.- 5

- 2. Life -contingent annuity

Petitioner will continue to receive the annuity payments from the Life Insurance

Company only so long as he, Max Baum, is al ive at the time that a particular payment is due.

Written notice shall be provided to the Secretary of Health and Human Services and the Life

Insurance Company within twenty (20) days of Max Baum ’s death.

3. Guardianship

Petitioner is a competent adult . Evidence of guardianship is not required in this case.

III. Summary of Recommended Payments Following Judgment

A. Lump Sum paid to petitioner, Max Baum : $399,599.88

B. Medicaid lien : $ 46,640.43

C. An amount sufficient to purchase t he annuity contract described above in section II.C.

Respectfully submitted,

CHAD A. READLER Acting Assistant Attorney General

C. SALVATORE D’ALESSIO Acting Director Torts Branch, Civil Division

CATH ARINE E. REEVES Deputy Director Torts Branch, Civil Division

ALEXIS B. BABCOCK Assistant Director Torts Branch, Civil Division

5 Petitioner authorizes the disclosure of certain documents filed by the petitioner in this case consisten t with the Privacy Act and the routine uses described in the National Vaccine Injury Compensation Program System of Records, No. 09-15-0056.- 6

- /s/ Ilene Albala ILENE ALBALA Trial Attorney Torts Branch, Civil Division U.S. Department of Justice P.O. Box 146 Ben Franklin Station Washington, D.C. 20044-0146 Direct dial: (202) 616-3655 Date: November 2, 2017

# Respondent ’ s Tab AAppendix A: Items of Compensation for Max Baum Page 1 of 2

ITEMS OF COMPENSATION G.R. * M Lump Sum Compensation Year 1 Compensation Year 2 Compensation Years 3-Life 2017 2018 2019-Life
PM&R 5% *
Internist 5% * Neurologist 5% *
Podiatrist 3% 852.00 852.00 852.00 Hospitalization 5% *
ER 5% *
Blood Work 5% * Urinalysis 5% *
EMG 5% *
TB Test 5% * Venous Doppler Study 5% * Bisacodyl Supp 3% 6.60 6.60 6.60
Vit B-12 3% 18.25 18.25 18.25
Senna 3% 65.70 65.70 65.70 Citalopram 5% * Deplin 5% *
Furosemide 5% *
Ativan 5% * Hydrocortisone Cream 5% *
Biofreeze 3% 269.52 269.52 269.52 Capsaicin Cream 3% 504.00 504.00 504.00 Coumadin 1mg & 2.5mg 5% *
Potassium Chloride 5% *
Finasteride 5% *
Alendronate Sodium 5% * Ibuprofen 3% 5.76 5.76 5.76 Acetaminophen (2) 3% 21.87 21.87 21.87
PT Eval 3% *
PT 3% M 5,658.00 5,658.00 1,074.00
OT Eval 3% *
OT 3% M 2,997.00 621.00 621.00 Recreational Therapy 3% M 3,437.00 3,437.00 3,437.00
Custom Shoes 3% 386.00 386.00 386.00 Hoyer Lift per Rehab Mart Price 3% 2,312.00 Slings for Lift per Rehab Mart 3% 92.00 92.00 92.00
Manual WC 3% *
Roho Cushion 3% 429.00 143.00 143.00
Cover for Cushion 3% 98.00 32.67 32.67
Walker 3% 111.00 22.20 22.20 Positioning Pillows 3% 187.50 62.50 62.50 Hand Weights 3% 57.00
E-stim 3% * E-stim Supplies 3% *Appendix A: Items of Compensation for Max Baum Page 2 of 2

ITEMS OF COMPENSATION G.R. * M Lump Sum Compensation Year 1 Compensation Year 2 Compensation Years 3-Life 2017 2018 2019-Life Compression Stockings 3% 76.64 76.64 76.64 Skilled Nursing Facility 3% M 114,245.00 114,245.00 114,245.00 Case Mngt 3% M 2,640.00 2,640.00 2,640.00 Transportation 3% 1,080.00 1,080.00 1,080.00 Pain and Suffering 237,359.96 Past Unreimbursable Expenses 26,690.08
Medicaid Lien 46,640.43

Annual Totals 446,240.31 130,239.71 125,655.71
Note: Compensation Year 1 consists of the 12 month period following the date of judgment. Compensation Year 2 consists of the 12 month period commencing on the first anniversary of the date of judgment. As soon as practicable after entry of judgment, respondent shall make the following payment to petitioner for Yr 1 life care expenses ($135,549.84), pain and suffering ($237,359.96), and past unreimbursable expenses ($26,690.08): $399,599.88. As soon as practicable after entry of judgment, respondent shall make the following payment jointly to petitioner and the State of Illinois, as reimbursement of the state's Medicaid lien: $46,640.43. Annual amounts payable through an annuity for future Compensation Years follow the anniversary of the date of judgment. Annual amounts shall increase at the rates indicated above in column G.R., compounded annually from the date of judgment

. Items denoted with an asterisk (*) covered by health insurance and/or Medicare. Items denoted with an "M" payable in twelve monthly installments totaling the annual amount indicated.